Washington, DC Tab 11 by fsb96139


									Tab 11
                              2008 TRUST AND ESTATE SUBCOUNCIL


                                     The Fairmont, Washington, D.C.

                                           11:00 a.m. - 12:30 p.m.
                                           Saturday, May 3, 2008

Action Items (15 min.)

    1. Approve October 19, 2007 Minutes (Terry Franklin) ...................................................... 11A

    2. New Charitable Planning and Exempt Organizations Group Committee ......................... 11B
           Federal and State Charitable Regulation and Legislation (Carol Kroch)
    3. Uniform Principal and Income Act (Steve Gorin) ........................................................... 11C
             a. Section 409; Q-TIP-IRA
             b. Effect of Tax Distributions from Flow-Through Entities to Trust;
                Section 505, Income Taxes; Tax Allocation

Activity and Projects Reports (40 min.)
   1. CLE Activities (Marc Bekerman)
   2. Community Outreach Committee (Marc Bekerman; Aen Webster; Stephanie Loomis-Price)
   3. Probate and Property Magazine (Tom Featherston)
   4. RPTE eReport (Rob Steele)
   5. Skills Training for Estate Planning Lawyers (Marc Bekerman)
   6. National Conference of Lawyers and Corporate Fiduciaries (Susan Porter)
   7. ULC Insurable Interest Project (David Neufeld)............................................................... 11D
   8. Uniform Law Committee (David English; Susan Gary; Michelle Clayton) ......................11E
   9. Property Preservation Task Force (David Dietrich).......................................................... 12G

Discussion Items (25 min.)
    1. CPA Engagement Letters (Ed Koren)

    2. Conservation Easement Hot Topics (David Dietrich)

    3. Litigation Hot Topics (Terry Franklin; Bob Sacks; Jessica Uzcategui)

Other Business

    1. Commission on Law and Aging Funding Request ............................................................11F

                   The Westin, Minneapolis, Minnesota
                         11:45 a.m. - 1:30 p.m.
                        Friday, October 19, 2007

Attendance: Section Officers: Steve Akers (Chair-Elect), Alan Rothschild (Division
Vice-Chair), Tina Portuondo (Secretary), Gideon Rothschild (Finance and
Corporate Sponsorship Officer); Council Members: Marc Bekerman, Dominic
Campisi, David Dietrich, Jo Ann Engelhardt, David English (Delegate),
Christopher Gadsden, Steven Gorin, Bernard Kearse, Barbara Sloan; Members:
Karen Boxx, Anta-Cisse Green, Michelle Clayton, Chris Cline, Susan Gary, T.
Randy Harris, Chuck Hodges, Carol Kroch, Carlyn McCaffrey, John McCaffrey,
Ed Koren (Past Section Chair), Julie Kwon, Stephanie Loomis-Price, Ed
Manigault, Richard Nenno, Elizabeth Ochoa, Susan Porter, Robert Sacks, Nancy
Shurtz, Robert Steele, Bruce Tannahill, Aen Webster, Kalimah White, Terry
Franklin (Assistant Secretary)

Welcome and Introduction – A. Rothschild: Welcomed attendees, thanked Steve Akers
for his past leadership and asked attendees to introduce themselves
1.      Overview of meeting and weekend activities re hot topics, group breakouts,
        updates. General group reports would be reserved until the next day.

2.    Action Items
      a.    Approve August 11, 2007 Minutes – Terry Franklin. A motion to approve
            the minutes from the last meeting of the Probate and Trust Division Sub-
            Council Meeting at the St. Regis Hotel, on Saturday, August 11, 2007 was
            made and seconded. The minutes were approved by voice vote subject to
            revisions submitted to the Assistant Secretary as follows: Attendance:
            David English is a Delegate; Discussion Item 1.a.: Only the President or
            President-Elect of the ABA may express an opinion on behalf of the ABA;
            Discussion Item 5: a Tax Section Council agreed with the IRS position and
            voted to oppose our resolution; Discussion Item 10: One state has adopted
            the Uniform Power of Attorney Act; Discussion Item 11: Regarding TOD
            Real Property Act, Tom Gallanis; Uniform Trust Code Commissioners
            approved moving forward with insurable interests in trusts.

3.    Discussion Items
      a.    Group Conference Calls: Mr. Rothschild acknowledged that the Group
            conference calls for the last two years have been very beneficial for the
            Division; Groups will try to meet at least quarterly and not just talk about
     activities, but also about substantive legal issues. Bunny Lee is in charge of
     coordinating Group Conference calls from RPTE staff.
b.   Best Practices --Chris Gadsden
     Mr. Gadsden noted that at the Colorado Springs Fall Leadership Meeting in
     2005, the Division talked about best practices. Last year the Committee on
     Groups and Substantive Committees collated ideas that might be
     considered. The 2007 Leadership Meeting Materials include a two-page
     document attempting to help new and experienced Group leaders. These
     should help Committee and Group leaders feel more effective in their roles
c.   Government Submissions – Susan Porter
     Ms. Porter directed attention to the meeting materials at p. 83 which
     includes the Section policy statement regarding government submissions.
     There are two types: Blanket authority which we don’t have to follow very
     often (though Carol Kroch earlier this year did comments under this
     policy); the second type is for normal or technical comment authority,
     which is a far less onerous procedure. The formalities for the comments are
     in the materials. Once generated, it is circulated to the Tax Section
     (aspirationally) for their input. We have a COGS (Committee on
     Governmental Submissions) committee, which conducts the final review
     authority for anything that we’ll be submitting. They would like ten days to
     review any proposed submissions, if possible. The actual final submission
     comes through Robin Roy, on staff who knows how it flows from there.
             (1)     Mr. Koren: Please get any submission to COGS as soon as
             (2)     Mr. English: The lead time for House of Delegates for ABA
                     approval is at least six months
             (3)     Mr. Rothschild: We have an informal agreement with the Tax
                     Section to discuss common topics but not take a contrary
                     position on any issue
             (4)     Ms. Kroch: The Charitable Group has had to do a number of
                     comments and struggled with what is technical and what is
                     policy and how far the Group can go. With each set of
                     comments we’re getting braver.
             (5)     Mr. Rothschild: With such great intellectual resources here,
                     we have so much to offer. We shouldn’t have to spend time
                     trying to figure out how to get the comments out. That’s why
                     we so appreciate the work Susan has done in getting this
             (6)     Mr. Akers: Compliments the Charitable Group for its
                     comments in last six months particularly
             (7)     Ms. Porter: Asks for additional volunteers because the work
                          is so important
                   (8)    Mr. Rothschild: Asks that we get the plea for more help on
                          submissions in the magazine and in our e-publications

4.   Activity and Projects Reports
     a.     CLE
            i.     Review of 2007 Fall CLE Meeting – Stephanie Loomis-Price
                   (1)    Though the Real Property Division hasn’t been as pleased
                          with the Fall Joint Meetings, we were very pleased with the
                          attendance and quality of programs
                   (2)    Mr. Rothschild: Our division believes each meeting gets
                          better as we work with the Tax Section. This leads to the
                          question, if the Real Property Division decides to discontinue
                          its participation in the Joint meeting, how do we feel on the
                          Trust and Estate Division continuing its participation?
                          (a)     Ms. Porter: Loves collaborating with the Tax Section
                          (b)     Ms. Sloan: This year the integration was 100%.
                                  Believes both sections came out very well – the best
                                  program we’ve ever seen
                          (c)     Mr. Koren: A financial aspect – if we don’t have the
                                  Real Property Division, the cost will drop substantially
                                  because of brochures, etc. In light of the success, even
                                  if Real Property drops out, Trust and Estates should
                          (d)     Ms. Kroch: the Charitable Group was very pleased
                                  with the program and would urge continuing
                          (e)     Mr. Nenno: As vice-chair of Non-Tax Planning
                                  Considerations Group, it is harder to partner with Tax
                                  Section on programs
                          (f)     Ms. Sloan: Expressed the opinion that it is a good
                                  thing to have non-tax programs; the Joint Meeting is
                                  one of the times the Tax Section gets a chance to
                                  attend some non-tax programs
                          (g)     Mr. Rothschild: On the financial side, the Real
                                  Property section would probably connect with another
                                  section so the staff would have an additional burden
                          (h)     Mr. Koren: That shouldn’t impact our Division’s
                          (i)     Mr. Rothschild: It appears our Division
                                  enthusiastically supports the continued Joint meeting

b.   Review of 2008 Spring Meeting– Aen Webster
     i.    We are gearing up. We have requested materials earlier so we can
           get our promotional materials together. We had great attendance in
           Spring 2007 and hope to keep it up
     ii.   Mr. Rothschild: Great turnout recently and will continue to have
           good attendance, easy access. The CLE committee would be
           interested in hearing of other good locations or let Alan know about
           Fall 2010

c.   Update on YLI eCLE Series– Marc Bekerman
           Successful program and we expect the same this year

d.   Preview of 2nd Annual YLI – Stephanie Loomis-Price
           Last year’s focus was on pre-death, this year’s is on post-death, post
           mortem planning; looking for speaker on ethics and representing a
           fiduciary, perhaps a professor

e.   CLE Results and Upcoming Programs – Bruce Tannahill
     i.   Outstanding year – see Tab 9C; revenues of $126,000, with over
          2900 registered attendees; if have suggestions for speakers or
          programs, let the committee know
     ii.  Mr. Bekerman: If a hot topic comes up, let us know, we can be
          flexible despite the great schedule we’ve done
     iii. Mr. Gorin: Think of creating E-CLE based on prior live programs
     iv.  Mr. Rothschild: Since so much CLE is group driven, SCMs and
          Groups should continue to encourage and submit programs

f.   Probate and Property Magazine – Tom Featherston
     i.    Mr. Rothschild: Tom is not present, but we need more content;
           There is a January 2 deadline for the May issue; We rely on SCMs
           and Group chairs to solicit articles. We’d like a minimum of one
           article per Group per year; style is not as formal as the journal.
           There have been two staff changes: Elaine Waterhouse Wilson is
           stepping down, Stevie Casteel taking her place; Dan Evans is
           stepping out, to be replaced by Jim Boring
     ii.   Ms. Engelhardt: Encourages fellows to contribute articles
     iii.  Mr. English: Articles needn’t be long; only ten pages, double spaced
g.   RPTE eReport – Rob Steele
     i.    Background: Electronic publications have all been merged into
           eReport. We have a critical mass starting, but we need more
           content. Here it is even easier than the magazine or the journal. The
            key is to get it out quickly. Our motto is to use the internet for what
            it is for: getting it out quickly. Steve Akers (with Bessemer) is great
            about providing materials. We’d like to get more material from
            more Groups; we’re green – we recycle and re-use. Just because
            someone else has published doesn’t mean it’s been read by all
            relevant constituencies. We’ll link to others’ materials. Please
            encourage discussion with Group Chairs and Vice-Chairs to provide
            content. If you have not been receiving e-Report it may be that you
            have chosen to opt out of some ABA materials. Technically if you
            opt out of some ABA materials, you may lose the ability to receive
            any of them.
            – Mr. Rothschild: You can check your profile to see what mail
            you’re getting

h.   Skills Training for Estate Planning Lawyers --Bill LaPiana
     i.     Mr. Rothschild: Bill had a conflict and can’t be here. This relates to
            Jeff Pennell’s “mid-career” program that he ran for 10 years which
            Bill LaPiana has now taken over.
     ii.    Mr. Bekerman: We had around 80 attendees; comments were mostly
            fairly positive; NY Law school would be happy to host next year
     iii.   Mr. Akers: Section would like this to continue. This has been a
            great program in the past; we’re looking at whether to continue to do
            it with ALI-ABA or not

i.   Synergy Summit – Jo Ann Engelhardt for David Neufeld
     i.    Dave Neufeld has prepared comments: The Synergy Summit is in its
           third year, becoming focal point for Section interacting with related
           organizations. It should be a unified think tank and voice of ABA-
           RPTE, AICPA (American Institute of Certified Public Accountants),
           Tax Section, NAELA (National Association of Elder Law
           Attorneys), Society of Financial Service Professionals
     ii.   Tannahill – Programs from the Fall Joint Meeting are on website
     iii.  Mr. Rothschild: Thanks David and others for work on this

j.   National Conference of Lawyers and Corporate Fiduciaries Susan Porter
     i.    Joint Committee not unlike Synergy Summit; people from this
           Section, and the American Bankers Association get together to
           exchange ideas and best practices. It’s especially helpful for
           Uniform Laws people to be involved, so Michelle Clayton has
           joined. It’s an exciting meeting; there has been no meeting since the
           last Council meeting
     ii.    Mr. Gadsden: Was on that committee for a long time; one struggle
            was getting ideas out to everyone participating
     iii.   Ms. Porter: Minutes should be circulated and made part of Council
     iv.    Mr. Kearse: Maybe in eReport or elsewhere we could occasionally
            mention some of these

k.   NCCUSL Update and Discussion David English
     i.  Section gets involved in drafting uniform laws in two ways: Joint
         Editorial Board (JEB) (Mr. Kartiganer and Ms. McCaffery) which
         acts as a sounding board, suggesting ideas for uniform acts, to
         coordinate with ACTEC on uniform laws. At end of Tab 9E is
         annual report of JEB, which will be included in Council Book;
         second way is that when a new uniform law is proposed a drafting
         committee seeks help from constituent groups. The Section has
         played a key role in assessing those acts. Uniform Laws are usually
         a two to three- year project;
         (1)     re recent acts: Uniform Adult Guardianship was approved by
                 Conference. As reported, Karen Boxx was section advisor;
                 Transfer on Death of Real Property, Susan Gary is ABA
                 advisor; Project to revise intestate succession provisions of
                 UPC; Two new projects just approved: Act re insurable
                 interests in Trusts – Neufeld nominated as advisor;
                 Regulation of Charities – Susan Gary will be nominated as
                 advisor on that project; Michelle Clayton is great, helping to

            (2)    Two action items:
                  (a)   Uniform Adult Guardianship Act was approved –
                        complete except for final review by style committee;
                        Karen Boxx was the reporter. Mr. English was the
                        advisor. We ask the Section to support and endorse
                        the act as it proceeds toward House of Delegates. The
                        Act tries to minimize conflicts between jurisdictions,
                        to facilitate transfers from one state to another, and
                        deals with recognition of court authority from one state
                        to another.
                        (i)     A motion was made to ask Council to endorse
                                the proposed act; the motion was then seconded
                                and approved by voice-vote.
                  (b)   Couple of issues in principal and income act need to be
                                 considered. Steve Gorin has looked at the issue,
                                 contacted the AICPA, and has a great idea. is now
                                 bigger and can do more
                          (c)    Uniform Principal and Income – Gorin
                                 (i)    Tab D: Two bullet points. Asking subcouncil
                                        to ask Council to approve: Clarification re
                                        distribution from entities and pass-through
                                        entities ambiguous provisions. Resolution asks
                                        that we approve looking at and modifying it.
                                        Solution will be subject of further discussion;
                                        Other issue is when retirement plan
                                        distributions come up and right of spouses to
                                        pull out income. Asking Council to approve
                                        further discussions at JEB re changes to UIPA.
                                 (ii)   A motion was made, seconded and approved by
                                        voice vote to as Council to approve further
                                        discussions at the Joint Editorial Board and to
                                        pursue changes to the UIPA

                          (d)    Ms. Kroch: My experience helped me learn how
                                 NCCUSL and ABA divide up responsibilities; suggest
                                 ABA advisor appointed to Regulation of Charities –
                                 some substantive knowledge in development of
                                 committee’s charge would greatly help. Don’t want a
                                 charge that has to be changed over time.
                                 (i)   English: Agrees
                                 (ii)  Clayton: Trying to be better with getting
                                       constituents involved in study and drafting, staff

             ii.   Model Act on Assisted Reproductive Technology (David English)
                   (1)   Individual rights and responsibilities wanted act to be gender
                         neutral; Section has become more visible at the House
                         Delegates; Exec. Committee may want to take up issue of
                         endorsing this act

5.    Adjournment – Rothschild
      a.    There being no further business of the Subcouncil, the meeting adjourned at

Respectfully Submitted,
Terry Franklin
Assistant Secretary, T& E Division

To:     Trust and Estate Subcouncil, RPTE Section

From: David English, Executive Director, JEB Uniform Trusts and Estates Acts

Re:     NCCUSL Report

Date: April 12, 2008

        The function of the JEB, on which the Section has three official representatives (Joe
Kartiganer, Carlyn McCaffrey, Malcolm Moore) is to make recommendations on new projects,
to advise on the drafting of uniform acts, and to monitor the progress of and to recommend
amendments to already existing uniform acts. Following is a report on current JEB projects and
other NCCUSL activities related to trusts and estates.

                               Already Approved Uniform Acts

        The shelf life of a uniform act is usually about 20 years. A chart of enactments normally
looks like a bell-shaped curve, usually starting slowly, picking up in the second and third year
and then declining at some later point. The following are recent acts on which there is still
significant enactment activity.

       Uniform Principal and Income Act (1997)–44 enactments through 2007 and one
introduction in 2008. JEB is currently working on a package of amendments arising from
discussions of the Act at ACTEC, the Section, and elsewhere.

        Uniform Anatomical Gift Act (2006)–these are amendments to an already existing
uniform act. There were 21 enactments in 2007 and 16 introductions in 2008. The Act has done
particularly well because of a well-financed lobbying effort by the Organ Procurement

      Uniform Trust Code (2000)–20 enactments through 2007 and 4 introductions in 2008.
JEB continues to monitor state changes and case law developments but at this time no
amendments are planned.

        Uniform Prudent Management of Institutional Funds Act (2006)–15 enactments in 2007,
17 introductions in 2008. Like Anatomical Gifts, this enactment effort is well-financed.

        Uniform Disclaimer of Property Interest Act (1997)–14 enactments through 2007. JEB is
currently preparing modest revisions to the comments.

        Uniform Power of Attorney Act (2006)–one enactment in 2007, 8 introductions in 2008.

        Uniform Guardianship and Protective Proceedings Act (2007)–5 enactments through

       Uniform Estate Tax Apportionment Act (2003)–5 enactments through 2007.

       Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act (2007)–5
introductions in 2008.

                                  Current Drafting Projects

       UPC Amendments–this project had its first reading at the 2007 NCCUSL Annual
Meeting and is expected to go final in 2008. The amendments have three objectives: (1) to
update the Code to address issues related to assisted reproduction technology; (2) to update for
other changes in the parent-child relationship, such as changes in adoption; and (3) to address
other and mostly minor issues that have arisen over the last decade. The ABA Advisor, who was
appointed by the RPTE Section, is Laura Twomey.

        Real Property Transfer on Death Act–this project will have its first reading at the 2008
NCCUSL Annual Meeting and is expected to go final in 2009. The Act allows an individual or
couple to name a survivor beneficiary on a deed without currently conveying any interest.
Invented in Missouri in the late 1980s, the beneficiary deed concept has been enacted by a
number of other states within the past several years. The Section is heavily represented in this
project. The Reporter is Tom Gallanis of the University of Minnesota, the Vice-Chair of the
Trusts and Estates Division Committee on Uniform Laws. The ABA Advisor is Dennis Horn,
who was appointed by the Section. The Section Advisor is Susan Gary.

        Principal and Income Act Amendments–although a great enactment success, significant
issues are arising with respect to particular provisions of the 1997 Act. Before the Section
Council at the DC meeting are proposed amendments to Sections 409 and 505, the amendment to
409 being prepared because of an IRS Revenue Ruling, and the amendment to 505 required to
correct an ambiguity. The plan is to have these amendments completed and approved by the end
of 2008. More long-term, questions are being raised as to whether the 20% partial liquidation
rule in 401 is right and whether the 90-10 rule in 409 makes sense for distributions from
employee plans. Other 90-10 allocations, such as the provision on natural resources, may also be
on the table. JEB will continue to study and make recommendations with respect to these
longer-term questions.

        Insurable Interests in Trusts–this drafting committee, only recently appointed, will be
drafting a provision addressing insurable interests in trusts. Dave Neufeld, who was appointed
by the Section, is the ABA Advisor. The drafting committee has to date focused largely on
determining the scope of its drafting project.

                                    Possible Future Projects

         Uniform Premarital Agreement Act (1982)–this Act had 27 enactments through 2007 and
4 introductions in 2008. However, families have changed over the last 25 years and the Act may
need updating. JEB Trusts and Estates will be meeting with JEB Family Law to work through a
list of issues.

       Revocation of Nonprobate Instruments–given the increasing prevalence of nonprobate
instruments, it may be time to take another look at the issue of whether a will should be able to
revoke or modify a nonprobate beneficiary designation. JEB is recommending to the NCCUSL
leadership that NCCUSL appoint a study committee to look at the question.

        UPC Articles 3 and 4–these articles relate to the administration of estates. Approved in
1969, they have not received a comprehensive review since their initial approval. JEB is
studying whether any amendments are desirable. Input from practitioners in UPC states would
be particularly helpful.

       UPC Section 6-102–this section, which was approved in 1997, addresses liability of
nonprobate assets for the decedent’s debts and other expenses. The drafting committee on the
Real Property Transfer on Death Act has asked JEB to look at this section to assess its
workability and to recommend amendments, if any.

       Mental Health Advance Directives–based on a proposal submitted by Karen Baxx and
Catherine Seal of the RPTE Section’s Elder and Disability law group, JEB will recommend to
the NCCUSL leadership that s study committee be appointed to look at the feasibility of drafting
a Uniform Act on mental health advance directives.

             Proposed Project on Uniform Adult Guardianship
                and Protective Proceedings Jurisdiction Act
                                  by the
                   ABA Commission on Law and Aging

1. Proposal for Which Funds Are Sought

        a. Background. In our increasingly mobile society, adult guardianships often
involve more than one state, raising complex jurisdictional issues. For example, many
older people own property in different states. Family members may be scattered across
the country. Frail, at-risk individuals may need to be moved for medical or financial
reasons – or sadly, may be moved across state lines against their will by wrongdoers
seeking to gain control. Thus, judges, guardians and conservators, and trusts and estates
counsel frequently are faced with problems about which state should have initial
jurisdiction, how to transfer a guardianship to another jurisdiction, and whether a
guardianship or conservatorship in one jurisdiction will be recognized in another.

        Such jurisdictional quandaries can take up vast amounts of time for courts and
attorneys. They can also cause cumbersome delays and financial burdens for family
members, sometimes even barring timely medical treatment for incapacitated individuals.
Jurisdictional tangles can exacerbate family conflict, aggravating sibling rivalry as each
side must hire attorneys to battle over which state will hear a case and where a final order
will be lodged. Moreover, without clear jurisdictional guideposts, perpetrators can engage
in elder abuse by forum shopping -- “granny snatching” with an eye on obtaining large
estates rather than on acting in the person’s best interest.

        High profile cases such as In re Mollie Orshansky, 804 A. 2d 1077 (D.C. App.,
2002) involving a guardianship battle between Washington DC and New York, and In the
Matter of Lillian Glasser (Superior Court of New Jersey, Chancery Division-Probate
Part, Middlesex County, Probate Docket No. 209568, March 8, 2007) featuring a family
conflict that pitted New Jersey and Texas courts have brought the issue to public
attention. (MacCormack, J., “Courts’ Captive About to Leave Texas,” San Antonio
Express-News, Jan 17, 2006). But judges routinely face multi-state issues that sap judicial
resources, frustrate well-meaning families, fail to account for those who are not well-
meaning and diminish public confidence in the courts.

        To address these compelling problems, the Uniform Law Commissioners in 2007
approved the Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act
(UAGPPJA or the Act). The Act does not change substantive law on guardianship, but
rather seeks to clarify jurisdiction and provide a procedural roadmap for addressing
dilemmas where more than one state is involved. The UAGPPJA helps sort out
jurisdictional problems in three key ways: (1) sets out a process to determine which state

will have jurisdiction to appoint a guardian or conservator if there is a conflict; (2)
facilitates transfers of guardianship or conservatorship cases among jurisdictions; and (3)
allows for recognition and enforcement of a guardianship or protective proceedings order
in other states through registration.

       The Act also enhances communication between courts of differing jurisdictions --
for example, as to which court has jurisdiction to proceed with a jurisdictional question,
and in order to facilitate a transfer. Additionally, the Act’s provisions encourage
cooperation between courts -- for instance, as to holding evidentiary hearings or ordering
assessments or investigations.

       The UAGPPJA has been approved by the American Bar Association (House of
Delegates approval in February 2008), the National College of Probate Judges, the
National Guardianship Association, and the National Guardianship Foundation (currently
the Center for Guardianship Certification).

        As it is jurisdictional in nature, the Act cannot work as intended -- providing
uniformity and reducing conflict -- unless all or most states adopt it. It is critical that
states move to enact the UAGPPJA as soon as possible. As of March 2008, two states
had enacted the UAGPPJA (Utah and Colorado); two states (Alaska and Missouri) and
the District of Columbia had introduced 2008 legislation; and legislators in some 12
additional states indicated they would introduce the Act. There is a compelling need for
timely education and outreach to probate judges, bar associations, guardianship groups
and the elder law community in every state. This proposed project would meet that need.

       b. Proposed Collaborative Project. The ABA Commission on Law and Aging
(Commission) has been involved in the drafting of the Act from the beginning. Erica
Wood, Assistant Director of the Commission, served as an advisor to the NCCUSL
Drafting Committee in 2005-2007; and the Commission supported the 2008 resolution
for approval by the House of Delegates.

        The Commission has played a leading role in guardianship reform for the past 25
years, including several national research reports, national conferences and tracking of
state legislative initiatives. Building on this extensive history, the Commission proposes
to coordinate a Joint Campaign for Uniform Guardianship Jurisdiction. The outreach
and educational campaign will have three components, and funding will be sought from
three sources:

   •   American College of Trust and Estate Counsel (ACTEC);
   •   The ABA Section of Real Property, Trust and Estate Law (RPTEL); and
   •   The Uniform Law Commission Foundation (ULCF).

        The first two components of the UAGPPJA campaign provide for extensive
outreach; and the third component provides for web-based and in-person education and
training. The three components are as follows:

         (1) Preparation and Dissemination of Materials. The Commission will
prepare a packet of materials useful to a range of state stakeholders interested in learning
more about the Act. Currently there is a fact sheet and summary of the Act prepared by
the Uniform Law Commission (ULC). To bolster the summary and support education
and advocacy about the Act, the Commission will produce materials that will use case
examples and more to bring to life the Act’s underlying rationales and emphasize the
effect the Act could have on people. The materials will highlight the potential for the Act
to target egregious cross-state cases involving elder abuse. It will include:

   •   Supporting statements from judges and other key players about the Act’s potential
       to resolve difficult issues;
   •   Case law supporting need for the Act; and
   •   Examples of interstate guardianship problems that are directly on point, and
       demonstrate the compelling need for enactment.

       To identify cases and examples, the Commission will conduct legal research using
Westlaw and solicit examples from practitioners through the Elderabuse listserve, which
includes over 1,600 professionals in the elder abuse field; the Elderbar listserve, which
reaches over 500 law and aging professionals in the public and private bar; the
Commission’s on-line Bifocal newsletter, which has over 900 subscribers; the National
Academy of Elder Law Attorneys listserve, which includes hundreds of private elder law
attorneys throughout the country; and the National Guardianship Association listserve,
which reaches a range of public and private guardians and guardianship professionals and
advocates. Queries could also be posted on additional listserves, such as those sponsored

       Commission staff will refine and clarify the responses received, soliciting any
additional information as needed.

        The Commission will prepare a draft of the informational packet for review by the
ULC staff, and will incorporate any ULC revisions. The Commission will disseminate
the packet electronically to key stakeholders in all of the states (for example, court
administrators, state judicial associations, bar associations), using e-mail, the listserves,
and the Web site (described below). Staff also will field any resulting initial contacts and
inquiries about the Act.

       The goal of this phase will be to raise the awareness of stakeholders about
problems in their own state that could be resolved by the Act.

        (2) Web Page on UAGPPJA. To ensure widespread national dissemination of
the materials developed by the ULC and the Commission, the Commission will design
and create a distinct Web page on the UAGPPJA. The Web page will include all of the
materials described above, in an easily accessible format. It will also: (a) solicit
additional examples of guardianship jurisdictional problems to add to the collection
previously outlined; (b) include links to the UAGPPJA materials on the ULC Web site;
and (c) include links to any key state documents concerning enactment of the Act.

        The Commission will host the UAGPPJA Web page on its own Web site
(www.abanet.org/aging), which Commission staff can easily develop and update. The
ULC site on the UAGPPJA will be linked to the Commission page. Additionally,
Commission staff will ensure that other interested entities (such as the National College
of Probate Judges, National Guardianship Association, National Academy of Elder Law
Attorneys, RPTEL and more) include links to the Web page on their respective sites. The
Commission’s web site attracts a large number of professionals and members of the
public (over 30,000 in the month of March 2008) who would thus learn about the Act and
its purpose.

       (3) Training and Education. The resources developed in the first two
components will stand on their own, but they also will support the goal of the campaign’s
third component: educating key stakeholders about the benefits of enacting the
UAGPPJA. This includes the following:

       (a) Presentation Template. The Commission will develop a “presentation
template” based on the case examples and stories for use by advocates of the Act at
national conferences as well as state meetings and hearings. The template will be posted
on the Web page.

        (b) Webcast. To reach a broad audience in a cost-effective manner, the
Commission will organize and conduct a Webcast on the Act for up to 500 participants.
The Commission has participated in a number of such Webcasts, each of which has
drawn high numbers of participants and has been highly rated. Project funds will be used
to pay a Webcast host, which will post the Commission-prepared PowerPoint slides on its
Web site and provide a toll-free telephone number for participants to use. Participants
will hear the presenters, see the slides, be able to print out materials, and have an
opportunity to ask questions during one or more designated question and answer periods.
The Webcast will be archived on the host’s Web page for one year, allowing individuals
who can not participate on the day of the Webcast to benefit from it at a later date.
Information about the Webcast and a link to the archive will be featured prominently on

the Commission’s Web page. The Webcast will give “big bang for the buck” in
educating a diverse national audience about the purpose of the Act, the procedures under
the Act and the kinds of situations addressed by the Act.

        (c) Conference Presentations and Additional On-Site Presentations. Commission
staff members routinely attend a number of guardianship- and elder abuse-related
conferences that provide opportunities for presentations about the Act at no additional
cost for travel. While presentations already have been given at recent National
Guardianship Association and the National College of Probate Judges conferences, it may
be valuable to provide updates as states begin to enact the Act. Other conference
possibilities include the National Aging and Law Conference and meetings or
conferences of state guardianship associations, state bar associations, the National
Academy of Elder Law Attorneys, RPTEL, the National Conference of State Court
Administrators, and the National Conference of State Legislatures. In addition, as
suggested in discussions with ULC staff, a small amount of funding has been built into
the budget to allow Commission staff to attend two or three additional events to
supplement the key on-site education and training travel of ULC staff and other
prominent experts such as David English and Sally Hurme on an as-needed basis.

2. Who Would Benefit From Project

The project will benefit:
   (a) Lawyers whose practice involves guardianship. Currently, lawyers with a multi-
        state guardianship case must arduously seek out lawyers in the other involved
        state(s) to help sort out the jurisdictional picture and determine the best case
        strategy. Lawyers must pursue lengthy and complicated jurisdictional petitions
        that could diminish the resources of their clients and delay the outcome of the
   (b) Judges who hear guardianship cases – either in probate or general jurisdiction
        court. Currently, judges have few guidelines on how to proceed and means for
        communication and cooperation with courts in other states.
   (c) Bar associations. Probate and elder law sections need information to help them
        advocate for the Act.
   (d) State guardianship associations, state aging and disability networks also require
        clear information to aid them in advocating for the Act.

3. Time Frame for Accomplishing Project

        Expeditious implementation of the project is necessary to support fast enactment
of the Act by states. The proposal covers a one-year time period. However, because the
2009 legislative year will be key to broad-based passage, the campaign will focus its
efforts primarily on the months of July – December 2008, allowing for maximum impact

before the 2009 state legislative sessions begin. In the remaining six months, the project
will continue to maintain and update the website, collect additional examples and provide
needed information.

4. Amount Sought

       The ABA Commission on Law and Aging is seeking $15,500 each from the
ACTEC Foundation, the ULCF and the ABA RPTEL Section. A detailed budget is

        The budget supports a small amount of time of three Commission staff members.
Lori Stiegel, Associate Staff Director, will devote 20% of her time to all project
components, performing most of the work. Ms. Stiegel is an internationally-recognized
expert in elder abuse. Erica Wood, Assistant Director, will devote 5% of her time to all
project phases. Ms. Wood has been involved in adult guardianship reform for over 20
years, and was an advisor to the UAGPPJA drafting committee. Trisha Bullock,
Administrative Assistant, will devote 5% of her time to project administrative duties.


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